Discovery Abuse

Abuse of the discovery process in litigation can delay justice and add to the costs of litigation

Abuse of the discovery process in litigation can delay justice and add to the costs of litigation for all parties involved.

For nearly two decades, the world's biggest corporations have relentlessly lobbied the U.S. Congress and state legislatures to restrict the ability of consumers to obtain relief through the legal system for severe or fatal injuries caused by defective products. These corporations approach lawmakers with wild claims about a "litigation explosion." They frequently complain about the expense of defending themselves from lawsuits and the delays that occur in our legal system.

Deliberate strategy of defendants

But the evidence shows that very often the actual cause of delay and expense is not the claims brought by the victims but the deliberate strategy of defendants, particularly defendants in product liability cases, to abuse the pre-trial discovery process in hopes of wearing down the plaintiff or keeping the plaintiff from obtaining information harmful to the defense case. Indeed, the public record is replete with examples of defense conduct so outrageous that trial judges have been pushed to impose severe sanctions. But such conduct persists, apparently because product liability defendants and their attorneys still consider such unethical strategies to be worth the gamble.

Lawyers are not free, like loose cannons, to fire at will upon any target on the legal landscape

The one consistent theme that runs most defense counsel's motion papers is his use of personal attacks and unduly inflammatory language in his certifications and briefs. Use of such language does nothing to assist the court in deciding the merits of a motion, wastes judicial resources by requiring the court to wade through the superfluous verbiage to decipher the substance of the motion, does not serve the client's interests well, and generally debases the judicial system and the profession.

The court is aware that a lawyer has an obligation and a duty to represent his client zealously and with diligence. However, "the circumstances of this case . . . present the unhappy picture of a lawyer who has crossed the boundary of legitimate advocacy into personal recrimination against his adversary. . . . Lawyers are not free, like loose cannons, to fire at will upon any target on the legal landscape. The practice of law is not and cannot be a free-fire zone.

Sanctions are appropriate when documents are produced only in response to motions to compel

Motions for sanctions are especially appropriate, for example, when your opponent has violated a court order, made a misrepresentation to the court, or continued to engage in certain conduct after being placed on notice that it is improper. Sanctions are also appropriate when documents are produced only in response to motions to compel and motions for sanctions. Motions for sanctions are especially appropriate, for example, when your opponent has violated a court order, made a misrepresentation to the court, or continued to engage in certain conduct after being placed on notice that it is improper. Sanctions are also appropriate when documents are produced only in response to motions to compel and motions for sanctions. Due to the important costs and benefits of discovery, decisions
that affect the scope, timing, or availability of discovery are
enormously consequential.The
principal goal of judges should be to make sure the truth comes out so justice may be done.

Discovery can be costly and burdensome

Discovery plays a key role in our courts.
Discovery can be costly and burdensome, but it also enables
settlement, reduces informational disparities between parties, and
clarifies issues for trial. Under the Federal Rules of Civil Procedure,
discovery is intended to occur with limited intervention by the court,
absent a dispute arising. However, in cases where a motion to
dismiss is filed, judges are routinely asked to stay discovery while
that motion is pending.By far the largest driver of litigation costs is the cost associated
with discovery. Discovery equalizes information asymmetries, thereby
enhancing settlement prospects and also reducing surprises and
gamesmanship at trial. Engaging in discovery allows both sides to
more fully assess the strengths and weaknesses of claims and
defenses